Fletcher v Woolworths Group Limited

[2023] NSWPIC 261

CERTIFICATE OF DETERMINATION OF MEMBER 

Citation:

Fletcher v Woolworths Group Limited [2023] NSWPIC 261

APPLICANT:

Jacinda Fletcher

RESPONDENT:

Woolworths Group Limited

Member:

Karen Garner

DATE OF DECISION:

6 June 2023

CATCHWORDS:

WORKERS COMPENSATION - Workers Compensation Act 1987; psychological injury; claim for permanent impairment lump sum compensation pursuant to section 66; accepted injury pursuant to sections 4(a), 9A and 11A(3); respondent raised defence pursuant to section 11A; whether the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to demotion, discipline, dismissal and/or provision of employment benefits; Held – applicant sustained a compensable psychological injury pursuant to sections 4(a), 9A and 11A(3); injury not wholly or predominantly caused by reasonable action of employer taken or proposed to be taken by or on behalf of the employer with respect to demotion, discipline, dismissal and/or provision of employment benefits; matter referred to President of the Personal Injury Commission for referral to a Medical Assessor for determination of whole person impairment.

determinations made:

The Commission determines:

1. The applicant sustained a psychological injury pursuant to ss 4(a), 9A and 11A(3) of the Workers Compensation Act 1987 (the 1987 Act).

2.     A defence pursuant to s 11A of the 1987 Act is not established.

The Commission orders:

1.     The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:

Date of injury:      1 October 2021

Body parts:          Psychological

Method:               Whole person impairment

2.     The materials to be referred to the Medical Assessor are to include:

(a)    Application to Resolve a Dispute (ARD) and attached documents;

(b)    Reply to ARD and attached documents;

(c)    Applicant’s Application to Admit Late Documents (AALD) dated 26 April 2023, and

(d)    Respondent’s AALD dated 3 May 2023.

STATEMENT OF REASONS

BACKGROUND

1. Jacinda Fletcher (the applicant) brings these proceedings against Woolworths Group Limited (the respondent) seeking payment of permanent impairment compensation pursuant to s 66 of Workers Compensation Act 1987 (the 1987 Act) arising from a psychological injury suffered in the course of her employment. The alleged date of injury is 1 October 2021.

2. The applicant first made a claim in respect of the injury on 9 November 2021.

3. On 17 November 2021, the respondent’s insurer issued a notice pursuant to s 78 of the Workplace Injury Management and Workers Compensation Act 1998 (the 1998 Act) which declined liability for weekly benefits. The insurer placed in dispute: whether the applicant sustained an injury arising out of or in the course of her employment; and whether her employment was a substantial contributing factor to any injury.

4. By a letter dated 11 July 2022, the applicant made a further claim in respect of the injury for weekly benefits pursuant to s 33 of the 1987 Act, medical expenses pursuant to
   s 60 of the 1987 Act and lump sum permanent impairment compensation pursuant to s 66 of the 1987 Act.

5. On 27 October 2022, the insurer issued a notice pursuant to s 78 of the 1998 Act which declined liability. The insurer raised a defence under s 11A of the 1987 Act, on the basis that the psychological injury was caused wholly or predominantly by reasonable action taken or proposed to be taken by the employer with respect to demotion, discipline, retrenchment and/or dismissal. The insurer also placed in dispute: whether the applicant had total or partial incapacity as a result of a workplace injury; whether medical and related expenses were reasonably necessary as a result of a workplace injury; whether the applicant suffered any impairment as a result of a workplace injury; and whether the applicant satisfied the requisite threshold for permanent impairment to recover permanent impairment compensation. The applicant sought a review of that notice.

6. On 7 December 2022, the insurer issued a notice pursuant to s 287A of the 1998 Act. The insurer raised a defence under s 11A of the 1987 Act, on the basis that the psychological injury was caused wholly or predominantly by reasonable action taken or proposed to be taken by the employer with respect to demotion, discipline, retrenchment and/or dismissal. The insurer also placed in dispute: whether the applicant had total or partial incapacity as a result of a workplace injury; whether medical and related expenses were reasonably necessary as a result of a workplace injury; whether the applicant suffered any impairment as a result of a workplace injury; and whether the applicant satisfied the requisite threshold for permanent impairment to recover permanent impairment compensation.

7. The applicant initiated proceedings in the Personal Injury Commission (Commission) by Application to Resolve a Dispute (ARD) dated 20 February 2023, in relation to:

   (a)    weekly benefits compensation, and

   (b)    permanent impairment compensation, calculated on the basis of 18% whole person impairment (WPI).

8. The respondent replied by way of Reply to ARD (Reply) dated 21 March 2023.

PROCEDURE BEFORE THE COMMISSION

1. The parties attended a hearing on 8 May 2023. I am satisfied that the parties to the dispute understand the nature of the application and the legal implications of any assertion made in the information supplied.  I have used my best endeavours in attempting to bring the parties to the dispute to a settlement acceptable to all of them.  I am satisfied that the parties have had sufficient opportunity to explore settlement and that they have been unable to reach an agreed resolution of the dispute. 

2. At the hearing, Mr Hammond of counsel appeared for the applicant, instructed by Mr Warren of Sommerville Laundry Lomax lawyers. Mr Grime of counsel appeared for the respondent, instructed by Ms Dunn of BBW Lawyers.

3. At the outset of the hearing, Mr Hammond sought leave to discontinue the claim for weekly benefits, which was granted.

ISSUES FOR DETERMINATION

1. The claim for weekly benefits has been discontinued. Only the claim for permanent impairment compensation is maintained.

2. The respondent now accepts that the applicant sustained psychological injury in accordance with ss 4(a) and 9A of the 1987 Act, with a date of injury of 1 October 2021.

3. The parties agree that the following issues remain in dispute:

   (a)    whether the defence of s 11A of the 1987 Act applies, that is, whether the applicant’s psychological injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the respondent with respect to demotion, discipline, dismissal and/or provision of employment benefits, and

   (b) whether the applicant satisfied the requisite threshold for permanent impairment to recover permanent impairment compensation pursuant to s 66 of the 1987 Act.

EVIDENCE

Documentary evidence

1. The following documents were in evidence before the Commission and considered in making this determination:

   (a)    ARD and attached documents;

   (b)    Reply to ARD and attached documents;

   (c)    applicant’s Application to Admit Late Documents (AALD) dated 26 April 2023, and

   (d)    respondent’s AALD dated 3 May 2023.

Oral evidence

1. There was no oral evidence called at the hearing.

The lay and documentary evidence

Applicant

1. The applicant gave evidence by way of a statement dated 16 February 2023. The applicant is currently 39 years of age.

2. The applicant stated that she commenced employment with the respondent in 1999. For approximately the last two years, the applicant worked in the role of toy specialist/hard goods member in the toy department, on a 17 hour per week contract. In that role, the applicant’s duties included processing pallets of toys, filling the stock onto the shelves, ordering price tickets, stock displays within the department and customer service.

3. The applicant stated that the previous person who worked in that role, was contracted to work 34 hours per week. The applicant was required to perform the same duties and keep up with the workload and presentation of the department in only 17 hours per week. The applicant was assisted by another work colleague during busy periods, however it was only for an average of 10 hours per week.

4. The applicant stated that her stress levels have significantly increased since she commenced in that role. The applicant’s workload was too great. She became increasingly anxious about how much stock she had to process in a very restricted timeframe. On numerous occasions, the department manager, Michael Green, instructed the applicant to process one pallet of stock per hour, which was unrealistic because it takes almost 15 minutes to bring a pallet onto the floor and set up safety barriers and a cage for rubbish. The applicant was also required to order price tickets and attach them to the stock during her shifts. The applicant was continuously told to work quicker. The applicant regularly went without breaks and continued working after the end of her shifts to try to keep up with her workload.

5. The applicant stated that Mr Green instructed other managers, including Katie Essex, that he spent approximately an hour with the applicant each week to update her on the department, see what improvements and changes she had made and keep her “real” with his expectation of how many pallets she should be able to process. The applicant denied that Mr Green gave her any direction or assistance. Mr Green often refused the applicant’s request for assistance, which added to the applicant’s stress because the workload is too much for her to get through.

6. The applicant stated that, over a busy school holiday period, no work colleague was rostered to assist her and she struggled to keep up with the workload. The store manager, Samantha Wilson, refused the applicant’s request for support, stating that the store wasn’t making enough money to pay for additional shifts. The applicant felt increasingly anxious about going to work.

7. The applicant stated that, on 1 October 2021, Ms Wilson told the applicant that she would not be allowed to attend work from 11 October 2021 because she was not vaccinated against COVID-19. This caused the applicant to feel stressed because she was allowed to continue to work during COVID-19 restrictions and she wanted to continue working. On 8 October 2021, the applicant was crying and almost shaking when she arrived at work.

8. The applicant stated that she has been issue with WorkCover Certificates from
   9 October 2021 to February 2023. She has received various treatment for psychological injury and she has ongoing psychological symptoms.

Carolyn Wainwright, work colleague

1. Ms Wainwright gave evidence by way of a statement dated 18 August 2022.

2. Ms Wainwright stated that on 8 October 2021, she received a text message from the applicant which stated “Can I ask who your Dr is at Queen St. Simon said they don’t like big W... just thinking I should go see someone today to try and help my situation”.

Samantha Wilson, store manager

1. Ms Wilson gave evidence by way of a statement dated 19 August 2022.

2. Ms Wilson stated that the applicant most recently worked as a permanent part-time member of the Toy Department. The applicant was contracted to work 17 hours per week but often worked additional hours, up to 27 hours per week. As the store manager during the relevant time, Ms Wilson did not directly manage the applicant. The applicant was managed by her line manager, Mr Green.

3. Ms Wilson denied any knowledge of the applicant being bullied or harassed at work or any complaint made in that regard by the applicant. An allegation of inappropriate conduct made by the applicant against another employee about 10 years previously was resolved with the assistance of the respondent’s HR department and the applicant never mentioned any ongoing issue in that regard.

4. In relation to the applicant’s allegations concerning her workload, Ms Wilson agreed that the previous person who had worked in the role had worked more hours than the applicant.
   Ms Wilson stated that additional resources were allocated to the toy department during busy periods and that whenever the applicant requested help, “she was always given it if it were possible to do so”. Ms Wilson said that there was never any expectation that the applicant would complete the same amount of work in less time and that the applicant “was always told to do what she could in the time she had”. On “maybe one or two occasions”, the applicant told Ms Wilson that she did not have time to finish a specific task. Ms Wilson said that was “fine because we only ever asked her to do what she could”. Ms Wilson noted that the applicant “had some issues with time management as she was a bit of a perfectionist”.
   Ms Wilson said that “Most days she would work half an hour or so beyond her rostered time to finish a task. She would do this of her own accord and was paid for this extra time... Jacinda never complained about working the extra hours. She did this of her own accord. It was not expected of her”.

5. Ms Wilson denied that it was ever apparent that the applicant was stressed due to any perceived issues around workload. Ms Wilson was never made aware that the applicant had any breathing issues or panic attacks associated with work.

6. Ms Wilson stated that “very occasionally, [the applicant] would say to me she did not understand what Michael [Green] was directing her to do or that she didn’t have direction”. Ms Wilson acknowledged that “Michael [Green] was sometimes deficient in executing a plan and the directions he gave were sometimes difficult to understand or execute”. Ms Wilson described it as “a simple lack of communication” from Mr Green, which was addressed by training.

7. Ms Wilson denied that Mr Green interacted with the applicant in a manner which was rude, inappropriate or bullying.

8. Ms Wilson denied that the applicant was bullied in relation to her opposition to being vaccinated against COVID-19 although she accepted that there “was perhaps some segregation” because other people avoided the applicant and others who were opposed to vaccination. However, the applicant made no complaint about being bullied as a result of her vaccination status.

9. Ms Wilson stated that on 1 October 2022, she met with the applicant and spoke to a prepared script. Ms Wilson explained the Public Health Order regarding COVID-19 vaccination and the applicant’s options in that regard, which included obtaining a medical certificate or exemption. The applicant stated that she wished to take leave. At the conclusion of the meeting, Ms Wilson offered the applicant the services of the respondent’s confidential counselling service.

10. Ms Wilson stated that 8 October 2022 was the last day that the applicant was allowed to work unvaccinated. The applicant did not seem stressed or upset that day.

11. The following day, the applicant submitted a claim for workers compensation.

Michael Green, line manager

1. Mr Green gave evidence by way of a statement dated 23 August 2022.

2. Mr Green was the applicant’s line manager. Mr Green indicated that he had no knowledge that the applicant had any recurring issues with her workload. He stated that the applicant never complained about workload or a lack of support. He stated that the applicant was provided with assistance on “the very odd occasion” when she requested assistance.

3. Mr Green denied that he was ever inappropriate or rude towards the applicant or that they ever had a conflict. He considered that they had a good relationship. He never observed the applicant having any breathing issues or panic attacks at work.

4. Mr Green stated that he was unaware that the applicant was resistant to vaccination against COVID-19 prior to finding out that she was not allowed to return to work due to the NSW Government Health Order in relation to COVID-19. Mr Green denied that the applicant was treated differently from other employees in relation to COVID-19 vaccination requirements or any other matter. He denied that the applicant ever complained about unfair treatment.

Other evidence

1. A script for store manager briefing dated 23 September 2021 set out the respondent’s protocol and briefing actions in relation to COVID-19.

2. Other evidence included various financial records, wage records and WorkCover Certificates were.

The medical evidence

1. There is no dispute that the applicant suffered a psychological injury.

2. The independent medical expert (IME), Dr Assad Saboor, psychiatrist, qualified by the respondent, provides an opinion which broadly supports the applicant’s contention that “overwork, unrealistic expectations and not being supported was the predominant cause of her psychological injury. The action taken by employer further exacerbated her psychological condition”.[1]

   [1] ARD, page 69.

3. Dr Saboor noted a reported history that:[2]

   “... She reported ongoing issues with her manager at work. She stated that she had not been supported. She reported that the manager had an unrealistic expectations [sic] and the workload was excessive. She reported during the busy time she was not supported and she was left behind. She had to stay back at work. She stated that the manager was rude towards her at times whenever she did not finish the tasks or work.

   She stated that she has been mistreated at work in particular when she did not get vaccinated. She reported that other people were ignoring her and avoiding her. She reported that she was experiencing a severe level of anxiety related to her workload and developing breathing problems and panic attacks at work whenever she was behind her work and was busy.

   Ms Fletcher stated that she gradually worsened and when she was not allowed to work because she was unvaccinated and her anxiety exacerbated and she went for workers’ compensation”.

   [2] ARD, page 66. See also pages 74-75.

4. In his supplementary report, Dr Saboor acknowledged his expertise limitation in determining the veracity of information provided by both parties and stated his opinion that “the action taken by the employer [in relation to the vaccination requirement] was the predominant cause of Ms Fletcher’s psychological injury”.[3]

   [3] ARD, page 75.

5. IME, Dr Frank Chow, psychiatrist, qualified by the applicant, provides an opinion that the applicant’s employment was the main contributing factor to her psychological injury. He noted that:[4]

   “... She stated that she had difficulties during her employment at Big W for a number years [sic], especially with the workload.

   She suffered from anxiety and shortness of breath intermittently for a number of years. She eventually developed difficulty coping with the workload. Furthermore, she felt bullied and maltreated by the workplace with the vaccination mandate. She eventually ceased work.”

   [4] ARD, 11.

6. Dr Chow recorded a reported history that:[5]

   [5] ARD, 8 – 9.

   “She stated that she has experienced bullying at work over the years, including confrontations with managers...

   She stated that she took up a position at the toys department, covering for another colleague’s maternity leave. She stated that the previous worker was allocated 34 hours a week, but she was only given 17 hours a week to fulfil the same tasks. There were unreasonable expectations with regard to the workload. She stated that she was always behind on tasks and required help.

   She stated that after a few months, she was offered assistance although it was difficult to get on top of things as she needed to train the new staff member. She stated that it was stressful and she needed to work during breaks. She stated that things often got out of hand during big sales.

   She stated that she was given an assistance for 5-10 hours a week, but this was not consistent during busy periods. She developed anxiety-related breathing issues at work.

   She stated that she worked through the COVID period, including the two lockdowns. She stated that during the lockdowns she was able to get on top of the workload and completed extra tasks that she was not able to do before.

   She stated that she had had clashes with the departmental manager previously who was often inappropriate and rude.

   She stated that during the school holidays, there was no support or backup. She stated that she was stressed and anxious. She had to stay back without breaks and was getting more anxious.

   She stated that the departmental manager left a note for the field manager to keep an eye on her with regard to the workload...

   She stated that she developed breathing issues due to the workload. She was anxious and was often in tears. She developed panic attacks due to the lack of support. She often felt overwhelmed as she was behind at her tasks.

   She stated that she was close friends with a few colleagues who were not vaccinated. She had not made a decision with regard to vaccines at the time. She stated that she felt treated unfairly as a result of being friends with unvaccinated colleagues and was labelled as an antivaxxer. She felt targeted and paranoid about what people were saying about her. She stated that she was in tears most morning before work.”

1. The applicant’s treating general practitioner, Dr Praveen Yadav reported that:[6]

   “In my opinion, ther [sic] have been several factors giving rise to her symptoms and injury. She reported that her symptoms got particularly worse after her workplace started forcing all employees to have COVID Vaccine. She did not want to have COVID vaccine and work has told her that she does not have to come to work. Ms Fletcher felt like she had been bullied into getting vaccine which was very difficult for her to accept.

   She also reported that there had been few digital changes at workplace earlier and this was also causing some extra pressure on her...”

   [6] ARD, page 6.

2. Clinical notes of the Psych Clinic included the following history reported on 14 October 2021:[7]

   “Jacinda ... reports she has attended therapy due to ongoing stress and anxiety related to her workplace and the mandating of COVID 19 Vaccinations in her workplace... she reports her coworkers and management as bullies who can at times be compassionate... Jacinda reports feeling unsupported by her peers suggesting people “avoid me because I don’t want to get vaccinated”... She reports her current position as toy specialist she reports she does not receive same amount of time per week to do the job as the previous toy specialist reporting that she often stays late off the clock to finish her job. she reports she has a poor relationship with her department manager describing him as unsupportive stating he only and racks [sic] with her if there is a problem. she reports that no members of management have checked in on her after

   finding out she intended to not get the vaccination. On the 1st of October she was informed that if not Vaccinated she would be prohibited from attending work from Oct 11, 2021 to December 1st 2021.”

   [7] ARD, page 14.

3. Clinical notes of the Queen Street Clinic included the following:

   (a)    on 3 April 2020, “Pt feels main symptom revolving around her anxiety which is heightened around COVID19 and having to work in toy section which is still very busy Discussed relaxation techniques, meditation apps etc”;[8]

   (b)    on 8 October 2021, “She says that she is having Panic attacks prior to coming to work. Her workplace is forcing all employees to have COVID Vaccine. She does not want to have vaccine and work has told her that she does not have to some [sic] work. There has been few other digital changes at workplace. She feel like she has been bullied into getting vaccine and surrounding the behaviour”,[9] and

   (c)    on 9 October 2021, “She has been suffering from increased anxiety since 1^st October – this is when she had been told by her Manager that she will not be allowed to work unless she gets vaccinated for COVID”.[10]

   [8] Reply, page 39.

   [9] Reply, page 46.

   [10] Reply, page 47.

SUBMISSIONS

1. Counsel’s submissions were recorded.

Respondent’s submissions

1. In summary, Mr Grimes submitted, for the respondent, that the Commission should be satisfied that a s 11A defence is established.

2. Mr Grimes submitted that the Commission should find that the whole and predominant causal factor for the applicant’s psychological injury was the respondent’s requirement for the applicant to be vaccinated against COVID-19. Mr Grimes particularly relied on the meeting between the applicant and Ms Wilson on 1 October 2021, when Ms Wilson told the applicant that she would not be allowed to attend work from 11 October 2021 because she was not vaccinated against COVID-19.

3. Mr Grimes submitted that the Commission should find that the alleged causal events did not occur, with the exception of the respondent’s requirement for the applicant to vaccinated against COVID-19. Mr Grimes submitted that, in particular, the Commission should find that the alleged unrealistic workload and bullying did not occur. Mr Grimes submitted that the Commission should not accept the applicant’s evidence in relation to the alleged causal events. He submitted that the other lay evidence disputed the applicant’s factual allegations and there was no evidence which corroborated the applicant’s evidence.
   Mr Grimes raised issues regarding the credibility of the applicant’s evidence. He also submitted that there was no contemporaneous medical or other evidence that the applicant had a psychological condition until the respondent communicated its requirement for COVID-19 vaccination to the applicant.

4. Mr Grimes submitted that the treating medical evidence supports a finding that the respondent’s requirement for COVID-19 vaccination was the sole causal factor. He submitted that the evidence of the respondent’s IME, Dr Saboor, should be preferred to the evidence of Dr Chow. He noted that Dr Saboor’s medical opinion was based on more comprehensive documentation.

5. Mr Grimes submitted that the respondent’s requirement for the applicant to be vaccinated against COVID-19 clearly falls within the s 11A ground of “provision of employment benefits”, “demotion” and/or “dismissal”.

6. Further, he submitted that, having regard to the evidence and the circumstances, the respondent’s actions and proposed actions in relation to its requirement for employees to be vaccinated against COVID-19 was “reasonable”. He noted that the applicant was stood down but was not dismissed.

7. On that basis, he submitted that there should be an award for the respondent.

Applicant’s submissions

1. In summary, Mr Hammond submitted, for the applicant, that the meeting on 1 October 2021, when Ms Wilson told the applicant that she would not be allowed to attend work from
   11 October 2021 because she was not vaccinated against COVID-19, does not fall within the s 11A grounds of “demotion”, “dismissal” or “provision of employment benefits”. He noted that Ms Wilson’s evidence is that she spoke to a prepared script, however the script does not hold the threat of “demotion” or “dismissal”.

2. Mr Hammond submitted that the evidence as a whole does not support a finding that the whole or predominant cause of the psychological injury was the meeting on 1 October 2021 and the respondent’s requirement that the applicant be vaccinated against COVID-19 to continue to work.

3. Mr Hammond noted that the applicant’s statement does not make allegations of bullying or harassment. He noted that the applicant’s statement alleges that she was overworked and under-resourced. He noted that some parts of the applicant’s factual allegations are not contested. Relying on the decision of State Transit Authority of New South Wales v Fritzi Chemler [2007] NSWCA 249; 920070 5 DDCR 286 (Chemler), he submitted that it is sufficient to establish causation that the applicant perceived events which actually occurred in the workplace as creating an offensive or hostile working environment.

4. Mr Hammond noted that some medical evidence which predates 1 October 2021 supports the applicant’s allegations in relation to causal factors of her psychological condition.

5. Mr Hammond submitted that, in any event, the Commission should not be satisfied on the evidence that the respondent’s actions were reasonable. He stated that there was a lack of detail evidence which would support a finding of reasonableness.

6. Mr Hammond submitted that the evidence of Dr Chow should be accepted and preferred notwithstanding any minor errors or inconsistencies regarding the applicant’s history.
   Mr Hammond noted that Dr Saboor’s opinion is largely consistent with the opinion of
   Dr Chow in that the applicant sustained a work related psychological injury. Mr Hammond submitted that Dr Saboor’s supplementary report should be treated cautiously because of the premise on which it was based.

7. Mr Hammond submitted that the applicant should be accepted as a credible witness. He noted that no application was made to cross-examine the applicant. He noted that the applicant’s evidence was generally consistent. He stated that she conceded that the meeting on 1 October 2021 was part of the cause of her psychological injury.

Respondent’s submissions in reply

1. In summary, Mr Grimes submitted in reply that the applicant’s evidence supports a finding that the respondent’s actions or proposed actions in relation to COVID-19 vaccination were the whole or predominant causal factor for the applicant’s psychological injury.

2. Mr Grimes submitted that the evidence supports a finding that the s 11A grounds of “demotion”, “dismissal” and/or “provision of employment benefits” are satisfied. In relation to “provision of employment benefits”, he relied on the evidence that the applicant worked 17 hours per week on a permanent part-time basis and that her hours, shifts and wages were affected.

3. Mr Grimes submits that the Commission should find on the evidence that the applicant’s evidence that she was overworked and not provided with assistance were not real events.

4. Mr Grimes submitted that the evidence of the applicant’s IME, Dr Chow, is not reliable because Dr Chow’s opinion was not based on a consideration of all of the evidence. He submitted that greater emphasis should be placed on the evidence of Dr Saboor.

THE LAW

Section 11A

1. Section 11A(1) of the 1987 Act provides:

   “(1)    No compensation is payable under this Act in respect of an injury that is a psychological injury if the injury was wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer with respect to transfer, demotion, promotion, performance appraisal, discipline, retrenchment, or dismissal of workers or provision of employment benefits to workers.”

2. “Psychological injury” is defined in s 11A(3) of the 1987 Act in the following terms:

   “(3)    A psychological injury is an injury (as defined in section 4) that is a psychological or psychiatric disorder. The term extends to include the physiological effect of such a disorder on the nervous system.”

3. The respondent has the onus of establishing a defence under s 11A(1) of the 1987 Act: Pirie v Franklins Ltd[11] (Pirie); and Department of Education and Training v Sinclair[12] (Sinclair).

   [11] [2001] NSWCC167; (2001) 22 NSWCCR 346.

   [12] [2005] NSWCA 465; (2005) 4 DDCR 206.

4. Firstly, in order to establish the defence, the injury must be “wholly or predominantly caused” by the respondent’s actions regarding one of the categories referred to in s 11A(1).

5. “Wholly” and “predominantly” are different concepts and a finding of one or the other needs to be considered: Smith v Roads and Traffic Authority of NSW[13] (Smith).

   [13] [2008] NSWWCCPD 130.

6. Relevant to the issue of causation of psychological injury, particularly in relation to a worker’s perception of real events at work, in Attorney General’s Department v K,[14] Roche DP (as he then was), summarised the principles to be applied:[15]

   [14] [2020] NSWCCPD 76.

   [15] [2020] NSWCCPD 76, at [52].

   “(a)    employers take their employees as they find them. There is an ‘egg-shell psyche’ principle which is the equivalent of the ‘egg-shell skull’ principle (Spigelman CJ in Chemler at [40]);

   (b)     a perception of real events, which are not external events, can satisfy the test of injury arising out of or in the course of employment (Spigelman CJ in Chemler at [54]);

   (c)     if events which actually occurred in the workplace were perceived as creating an offensive or hostile working environment, and a psychological injury followed, it is open to the Commission to conclude that causation is established (Basten JA in Chelmer at [69]);

   (d)     so long as the events within the workplace were real, rather than imaginary, it does not matter that they affected the worker’s psyche because of a flawed perception of events because of a disordered mind (President Hall in Sheridan);

   (e)     there is no requirement at law that the worker’s perception of the events must have been one that passed some qualitative test based on a ‘objective measure of reasonableness’ (Von Doussa J in Wiegand at [31]), and

   (f)     it is not necessary that the worker’s reaction to the events must have been ‘rational, reasonable and proportionate’ before compensation can be recovered. (at [52])”.

   And said:[16]

   “The critical question is whether the event or events complained of occurred in the workplace. If they did occur in the workplace and the worker perceived them as creating an ‘offensive or hostile working environment’, and a psychological injury has resulted, it is open to find that causation is established. A worker’s reaction to events will always be subjective and will depend upon his or her personality and circumstances. It is not necessary to establish that the worker’s response was ‘rational, reasonable and proportional...”

   [16] [2020] NSWCCPD 76, at [54].

7. Reliance on factual material alone will not always be sufficient to establish a s 11A defence and medical evidence may be necessary to determine the causation issue: Hamad v Q Catering Limited (Hamad).[17]

   [17] [2017] NSWWCCPD 6.

8. The term “performance appraisal” was considered by Geraghty CCJ in Irwin v Director General of School Education[18] (Irwin):

   “It is important to consider the meaning of the term “performance appraisal”. The respondent submitted that it should receive its ordinary street meaning, that it is not a term of art. But it seems to me to be a rather precious and precise expression. It is framed within the context of other processes like ‘transfer’, ‘demotion’, ‘promotion’, retrenchment or ‘dismissal’ of workers. It must be seen in this context. Furthermore, performance appraisal is a process, an established process involving various steps. Perhaps it will involve the completion of questionnaires and forms. It requires discussion between various parties about performance, written appraisal, sometimes even self-appraisal, maybe even a score. It is a process in which parties are engaged and knowingly engaged. ‘Performance appraisal’ is not a vague, continuing, informal process which begins on the first day of employment although, in a sense, we can say that we are continually under scrutiny and being appraised in somewhat the same way as students in a classroom are being scrutinised on a day-to-day basis. But ‘performance appraisal’ is somewhat like an examination, not a continuing assessment. Performance appraisal is more like a limited discreet process, with a recognised procedure through which the parties move in order to establish an employee’s efficiency and performance.”

   [18] Compensation Court of NSW, Geraghty CCJ, 18 June 1998, No 14068 of 1987 (unreported).

9. The term “discipline” was considered in Kushwaha v Queanbeyan City Council:[19]

   “... the primary meaning of ‘discipline’ is learning or instruction imparted to a learner and the maintenance of that learning by training, by exercise or repetition. The narrow meaning of that word as punishment or chastisement is secondary to the primary meaning...”

   [19] [2002] NSWCC 25; 23 NSWCCR 329, at [152].

10. The Court of Appeal has said that a broad approach is to be taken to the expression “action with respect to discipline” in s 11A(1), and it is “capable of extending to the entire process” involved in disciplinary action: Northern NSW Local Health Network v Heggie[20] (Heggie).

    [20] [2013] NSWCA 255; 12 DDCR 95.

11. Secondly, the respondent is required to establish the respondent’s actions were “reasonable”.

12. In Richie v Department of Community Services[21] (Richie), Armitage J said:

    “... it is apparent that the test in this case is an objective one, where one must weigh the consequences of the respondent's conduct against the reasons given for it, and I have done so. It follows of course from the objective nature of the test that evidence given by the applicant as to the perceived unreasonableness of the respondent's conduct or from the respondent as to the reasonableness of its conduct from its perspective will not be determinative of this issue.”

    [21] [1998] NSWCC 40; (1998) 16 NSWCCR 727, at [47].

13. The issue of reasonableness was considered by Geraghty CCJ in Irwin:[22]

    “... the question of reasonableness is one of fact, weighing all the relevant factors. That test is less demanding than the test of necessity, but more demanding than the test of convenience. The test of ‘reasonableness’ is objective and must weigh the rights of employees against the object of the employment. Whether an action is reasonable should be attended, in all the circumstances, by questions of fairness.”

    [22] Cited with approval by Roche DP in Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1, at [64].

14. In Ivanisevic v Laudet Pty Ltd,[23] Truss CCJ said:

    “In my view when considering the concept of reasonable action, the Court is required to have regard not only to the end result but to the manner in which it was effected.”

    [23] Unreported, 24 November 1998; cited with approval by Roche DP in Shore v Tumbarumba Shire Council [2013] NSWWCCPD 1, at [64] – [65].

15. These passages were quoted with approval by Foster AJA (Sheller and Santow JJA agreeing) in Commissioner of Police v Minahan[24] (Minahan) who added:

    “The words ‘reasonable action’, in a statute dealing with Workers Compensation rights of employees should be given a broad construction, unfettered by considerations as to whether the employee can or cannot also bring an action at common law against the employer, founded upon breach of a duty of care.”

    [24] [2003] NSWCA 239; 1 DDCR 57, at [42].

16. Reasonableness is judged having regard to fairness appropriate in the circumstances, including what went before or after a particular action: Burke J in Melder v Ausbowl Pty Ltd.[25]

    [25] [1997] 15 NSWCCR 454.

17. In Jackson v Work Directions Australia Pty Ltd,[26] Armitage J stated “only if the employer’s actions in all the circumstances was fair could it be said to be reasonable”.

    [26] [1998] NSWCC 45.

18. In Heggie[27] Sackville AJA stated the following principles regarding s 11A(1):

    [27] [2013] NSWCA 255; 12 DDCR 95, at [59].

    “The following propositions are consistent both with the statutory language and the authorities that have construed s 11A(1) of the WC Act:

    (i)A broad view is to be taken of the expression "action with respect to discipline". It is capable of extending to the entire process involved in disciplinary action, including the course of an investigation.

    (ii)Nonetheless, for s 11A(1) to apply, the psychological injury must be wholly or predominantly caused by reasonable action taken or proposed to be taken by or on behalf of the employer.

    (iii)An employer bears the burden of proving that the action with respect to discipline was reasonable.

    (iv)The test of reasonableness is objective. It is not enough that the employer believed in good faith that the action with respect to discipline that caused psychological injury was reasonable. Nor is it necessarily enough that the employer believed that it was compelled to act as it did in the interests of discipline.

    (v)Where the psychological injury sustained by the worker is wholly or predominantly caused by action with respect to discipline taken by the employer, it is the reasonableness of that action that must be assessed. Thus, for example, if an employee is suspended on full pay and suspension causes the relevant psychological injury, it is the reasonableness of the suspension that must be assessed, not the reasonableness of other disciplinary action taken by the employer that is not causally related to the psychological injury.

    (vi)The assessment of reasonableness should take into account the rights of the employee, but the extent to which these rights are to be given weight in a particular case depends on the circumstances.

    (vii)If an Arbitrator does not apply a wrong test, his or her decision that an action with respect to discipline is or is not reasonable is one of fact.”

19. In Heggie, Sackville AJA further stated:[28]

    “Ordinarily, the reasonableness of a person’s actions is assessed by reference to the circumstances known to that person at the time, taking into account relevant information that the person could have obtained had he or she made reasonable inquiries or exercised reasonable care. The language does not readily lend itself to an interpretation which would allow disciplinary action (or action of any other kind identified in s 11A(1)) to be characterised as not reasonable because of circumstances or events that could not have been known at the time the employer took the action with respect to discipline.”

FINDINGS AND REASONS

[28] At [61].

Wholly or predominantly

1. In my view, the evidence in this matter does not satisfy the requirement that the applicant’s injury is wholly or predominantly caused by the respondent’s actions or proposed actions with respect to any of the alleged grounds, namely “demotion”, “discipline”, “dismissal” or “provision of employment benefits”.

2. Mr Grimes submitted for the respondent that the Commission should find that the whole and predominant causal factor for the applicant’s psychological injury was the respondent’s requirement for the applicant to be vaccinated against COVID-19. Mr Grimes particularly relied on the meeting between the applicant and Ms Wilson on 1 October 2021, when
   Ms Wilson told the applicant that she would not be allowed to attend work from
   11 October 2021 because she was not vaccinated against COVID-19.

3. The applicant’s evidence is that she was overworked, under-resourced and unsupported by management. The applicant stated that she struggled to keep up with the workload particularly over a busy school holiday period.

4. In relation to the applicant’s allegations that she was overworked and under-resourced, there is no evidence of any specific contemporaneous complaint in that regard reported by the applicant to the respondent.

5. However, Ms Wilson conceded that the previous person who worked in the applicant’s role had worked more hours than the applicant. Ms Wilson also conceded that, although the applicant was contracted to work 17 hours per week, she often worked additional hours, up to 27 hours per week. Ms Wilson stated that additional resources were allocated to the toy department during busy periods and that whenever the applicant requested help, and that the applicant “was always given it if it were possible to do so”. Ms Wilson’s evidence is that, most days, the applicant of her own accord would work half an hour or so beyond her rostered time to complete a task. Further, Ms Wilson acknowledged that on occasion the applicant told Ms Wilson that she did not have time to finish a specific task. Ms Wilson stated that there was never any expectation that the applicant would complete the same work in less time and that she was “always told to do what she could in the time she had”. However, somewhat inconsistently, Ms Wilson also noted that the applicant “had some issues with time management as she was a bit of a perfectionist”. Ms Wilson also stated that the applicant reported a lack of clear direction from Mr Green. Further, Ms Wilson conceded that there was a “lack of communication” from Mr Green.

6. Mr Green acknowledged that the applicant requested assistance on “the very odd occasion” and stated that she was then provided with assistance. Mr Green did not specifically deny the applicant’s allegation that he instructed other managers to keep the applicant “real” with his expectation of how many pallets she should be able to process.

7. The history of being overworked and under-resourced which the applicant reported to the medical experts and treating practitioners is broadly consistent.

8. It appears to me from the evidence that the applicant was a diligent and dedicated employee and that she experienced a sense of responsibility to complete her work each day.

9. I do not accept the respondent’s submissions regarding the applicant’s credibility. No application was made to cross-examine the applicant. The applicant’s evidence was generally consistent. Considering the evidence as a whole, I feel a real sense of persuasion that the applicant is an honest and reliable witness and I accept the truth of her evidence in relation to the substantive issues.

10. For these reasons, I find that there were real events at the applicant’s work which the applicant perceived as a situation of being overworked, under-resourced and a lack of managerial support, being an offensive or hostile working environment.

11. Turning to the medical evidence, the Queen Street Clinic clinical notes evidences that, as early as 3 April 2020, the applicant reported anxiety about having to work in the respondent’s toy department “which is still very busy”.

12. Clinical notes of the Psych Clinic dated 14 October 2021 evidences that one reported cause of the applicant’s anxiety was her workload.

13. Otherwise, the treating medical evidence largely evidences the respondent’s COVID-19 vaccination requirement as a causal factor for the applicant’s psychological injury.

14. Dr Saboor’s initial report supports the applicant’s contention that “overwork, unrealistic expectations and not being supported was the predominant cause of her psychological injury. The action taken by employer further exacerbated her psychological condition”.[29]
    

    [29] ARD, page 69.

    [30] ARD, page 75.

    Dr Saboor’s supplementary report, based on his consideration of further information provided by the insurer regarding the evidence which challenged the facts alleged by the applicant, supports a finding that “the action taken by the employer [to suspend the worker for want of vaccination] was the predominant cause of Ms Fletcher’s psychological injury”.[30]

15. Dr Chow’s report supports the applicant’s contention that a main contributing factor to her psychological injury was her difficulties coping with the workload although Dr Chow also accepted that the applicant felt bullied and maltreated in relation to the respondent’s vaccination mandate.[31]

    [31] ARD, page 11.

16. Given my findings above in relation to the factual matters, I give little weight to the supplementary report of Dr Saboor, which was premised on his consideration of the competing evidence in that regard. Dr Saboor acknowledged his expertise limitation in determining the veracity of information provided by both parties.

17. In any event, I prefer and accept the evidence contained in Dr Chow’s report, notwithstanding any minor errors or inconsistencies regarding the applicant’s history. I note that it is largely consistent with the initial report of Dr Saboor. In my view, Dr Chow took a thorough and informed approach and I see no error in his reasoning.

18. Having regard to the evidence as a whole, I feel an actual sense of persuasion and I accept that the applicant’s perception that she was overworked, under-resourced and unsupported by management, based on real events, was a real and very significant cause of her psychological injury.

19. For these reasons, I feel an actual sense of persuasion and I find that the meeting on
    1 October 2021 and the respondent’s requirement that the applicant be vaccinated against COVID-19 to continue to work, was not the whole nor predominant cause of the applicant’s psychological injury.

20. The respondent relied upon the meeting between the applicant and Ms Wilson on
    1 October 2021 and the respondent’s requirement in relation to COVID-19 vaccination as the whole and predominant causal factor for the applicant’s psychological injury to ground a defence pursuant to s 11A of the 1987 Act.

21. Given my findings in this regard, I do not need to deal with the issue of whether such causal factor was with respect to any of the alleged grounds, namely “demotion”, “discipline”, “dismissal” or “provision of employment benefits”. Further, I do not need to deal with the issue of reasonableness.

22. For the reasons set out above, I find that a s 11A defence is not established.

Determination of whole person impairment

1. There is a dispute in relation to assessment of WPI. Given my findings above, it is appropriate to refer the matter to the President for referral to a Medical Assessor for determination of WPI.

SUMMARY

1. The applicant sustained a psychological injury pursuant to ss 4(a), 9A and 11A(3) of the 1987 Act.

2. A defence pursuant to s 11A of the 1987 Act is not established.

3. The matter is remitted to the President for referral to a Medical Assessor for assessment as follows:

   Date of injury:      1 October 2021

   Body parts:          Psychological

   Method:               Whole person impairment

4. The materials to be referred to the Medical Assessor are to include:

   (a)    ARD and attached documents;

   (b)    Reply to ARD and attached documents;

   (c)    applicant’s AALD dated 26 April 2023, and

   (d)    respondent’s AALD dated 3 May 2023.